ORDER : 1. This appeal has been filed by accused-appellants against judgment dated 18.07.2012 passed by the Court of Additional Sessions Judge, Bandikui, District Dausa (for short ‘the trial court’) whereby the trial court has convicted and sentenced the accused-appellants in the manner indicated below: Name of accused appellant Section Sentence Dev Prakash 302 IPC Life Imprisonment with fine of Rs. 5,000/-, in default of payment of fine to further undergo additional rigorous imprisonment of three months. Radhey Shyam Smt. Hardevi 302/34 IPC Life Imprisonment with fine of Rs. 5,000/-, in default of payment of fine to further undergo additional imprisonment of three months. Dev Prakash Radhey Shyam Smt. Hardevi 304 B IPC Life imprisonment. Dev Prakash Radhey Shyam Smt. Hardevi 498 A IPC Three years rigorous imprisonment with fine of Rs. 1,000/-, in default of payment of fine to further undergo additional rigorous imprisonment of one month. 2. All the sentences were ordered to run concurrently. 3. Facts of the case are that a written report (Exhibit P-6) was submitted by Ramesh Chand (P.W.4) to SHO, Police Station Bandikui alleging therein that marriage of his daughters Nisha and Chandrakala was solemnized on 19.04.2008. Nisha was married with Dev Prakash and Chandrakala with Gajanand at Balaheda. He gave an almirah, fan, cooler, 51 utensils, stitching machine, two chairs, table, television etc., rings of gold, silver anklet, neckless, bangles, gold ring and gold chain to the boy. It was further alleged that after the marriage, the appellants started harassing his daughter Nisha on demand of dowry. They used to often beat Nisha and demand a motor cycle and Rs. 50,000/- in cash. In January, 2010 also, they gave beating to Nisha, which led to fracture of her head. They ousted her from the house, as a result of which, she started living with him and told that incident to him. After 1½ years, elder brother-in-law (jeth) of Nisha requested him to send Nisha to her in-laws upon which Nisha was allowed to go to her in-laws. Thereafter, the accused-appellants again started to harass Nisha on demand of dowry. On 19.06.2006 at about 6.00 A.M., husband Dev Prakash, father-in-law Radhey Shyam and mother-in-law Smt. Hardevi gave beating to Nisha and after pouring kerosene over her body, set her on fire, as a result of which, she was seriously burnt and admitted to Government Hospital, Bandikui. Thereafter, the accused-appellants again started to harass Nisha on demand of dowry. On 19.06.2006 at about 6.00 A.M., husband Dev Prakash, father-in-law Radhey Shyam and mother-in-law Smt. Hardevi gave beating to Nisha and after pouring kerosene over her body, set her on fire, as a result of which, she was seriously burnt and admitted to Government Hospital, Bandikui. Since her condition was serious, she was referred to S.M.S. Hospital, Jaipur. Lastly, the complainant alleged that the accused-appellants with intention to kill his daughter Nisha, had burnt her. Action be taken against them. 4. On the basis of the aforesaid written report, the police registered FIR No. 481/2011 (Exhibit P-14) for alleged offence under Sections 498A and 307 IPC and investigation commenced. During investigation, Nisha died, therefore, Sections 302 and 304- B IPC were added. Upon completion of investigation, the police submitted charge sheet against the accused-appellants in the court of concerned Judicial Magistrate. The offence being exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of learned Additional District and Sessions Judge, Bandikui. The learned trial court, after hearing the arguments on charge, framed charge against the accused appellants for offence under Sections 498-A, 304-B and 302 IPC. The accused-appellants denied the charges and claimed to be tried. During trial, the prosecution examined as many as 16 witnesses and got 17 documents exhibited in support of its case. Thereafter, the accused-appellants were examined under Section 313 Cr.P.C. in which they denied the prosecution case and stated that Nisha was burnt when her clothes caught fire from the stove and they have been falsely implicated in this case without any connecting or corroborating evidence. In defence, one witness was produced and three documents were exhibited. Upon completion of trial, the trial court vide impugned judgment dated 18.07.2012 convicted and sentenced the accused-appellants in the manner as indicated above. Hence, this appeal. 5. Mr. J. P. Goyal, learned Senior Counsel appearing on behalf of the accused-appellants argued that the judgment passed by the learned trial court is wholly illegal, perverse and against the material on record. The judgment is wholly erroneous and misconceived and the finding arrived at by the learned trial court has been recorded on the basis of surmises and conjectures. All the prosecution witnesses are close relatives of the complainant and the deceased Nisha, therefore, they are interested witnesses. The judgment is wholly erroneous and misconceived and the finding arrived at by the learned trial court has been recorded on the basis of surmises and conjectures. All the prosecution witnesses are close relatives of the complainant and the deceased Nisha, therefore, they are interested witnesses. The prosecution did not produce any independent witness. The prosecution has failed to produce any neighbour of the accused appellants and also any other independent witness, therefore, the prosecution story creates doubt and the accused-appellants cannot be convicted on that basis. It is argued that whole story of the prosecution seems to be concocted and afterthought. Even the prosecution case does not match with the site plan because in the instant case the room in which Nisha alleged to had been burnt, no evidence with regard to any smell of kerosene and mas was found by the police and no such marks have been found in that room. Thus, the case of the prosecution cannot be held accepted. It is argued that earliest information received at Police Station Bandikui, was entered in Rojnamcha but the same has not been produced by the prosecution before the trial court and the same was deliberately withheld. The police has registered a false report against the accused-appellants in connivance and collusion with the complainant party. From the facts and circumstances of the case, it will be proved that it is a clear cut case of accident, which has been converted into a case of murder or dowry death by the police. In the instant case an accident took place when deceased Nisha was working on stove when while making tea early in the morning, suddenly her clothes caught fire. It is submitted that the prosecution came with a case that one Pappu informed Ramesh Chand with regard to the incident and he stated that the accused appellants poured kerosene on Nisha and put her on fire. The said Pappu had been produced by the prosecution as P.W.8 but he has not supported the case of prosecution was declared hostile. Therefore, the accused-appellants cannot be convicted on the basis of such evidence. 6. Learned Senior Counsel argued that the trial court committed a serious illegality in convicting the accused appellant and relying upon a dying declaration of deceased Nisha which was recorded by Chandra Pal Singh (P.W.1); who is a police official. Therefore, the accused-appellants cannot be convicted on the basis of such evidence. 6. Learned Senior Counsel argued that the trial court committed a serious illegality in convicting the accused appellant and relying upon a dying declaration of deceased Nisha which was recorded by Chandra Pal Singh (P.W.1); who is a police official. It is submitted that before recording the statement of deceased Nisha, Chandar Pal Singh (P.W.1) did not obtain any certificate from the doctor in respect of fitness of the deceased Nisha, whether she was fit for giving statement or not. It is further submitted that even deceased Nisha died after a considerable delay of 15 hours from the incident and Chandra Pal Singh (P.W.1) was having sufficient time to call for a First Class Magistrate or SDM etc. But he did not bother to call them. In the present case, deceased Nisha died after 15-16 hours from the incident and Chandra Pal Singh (P.W.1) was having sufficient time but in connivance and collusion with the complainant party and he hurried by recorded alleged dying declaration as per witness of the complainant party. It is submitted that even Dr. Shri Ram Sain (P.W.2) has categorically stated that who Nisha was brought to hospital, 3-4 males and females were with her and they were continuously talking to her. She told Chandrapal Singh that before taking statement, C.O. and higher officials be called. It is argued that Chandra Pal Singh (P.W.1) in a hurried manner recorded statement of deceased Nisha and at the time of recording of statement, family members of deceased Nisha were present and therefore, the alleged statement of deceased Nisha cannot be relied because without waiting for any higher officer, judicial officer or executive officer, Chandra Pal Singh (P.W.1) himself recorded the statement. There is no iota of evidence on record with regard to the position of Smt. Nisha whether she was fit or not or whether she was in a position to give statement. Chandra Pal Singh (P.W.1) has stated that family members of the deceased were sitting besides her but he did not recognise them. They were talking with each other. He also admitted that there were cuttings/interpolations at various places in statement of the deceased (Exhibit P-1) and that he did not obtain any separate certificate from doctor regarding fitness of the deceased. They were talking with each other. He also admitted that there were cuttings/interpolations at various places in statement of the deceased (Exhibit P-1) and that he did not obtain any separate certificate from doctor regarding fitness of the deceased. It is therefore argued that at the time of recording the alleged statement of Nisha, the parents of Nisha were present and there is every possibility that the said Chandra Pal, ASI (P.W.1) was tutored by them and he recorded her statement as per their wishes. It is submitted that while on one hand Chandra Pal (P.W.1) categorically stated that at the time of recording the statement the parents of deceased Nisha were there and on the other, Ramesh Chand (P.W.4) has stated that when the statement was recorded by Chandra Pal Singh (P.W.1), they were not present. In this view of the matter, it is clear that there are material contradictions between the statements of witnesses recorded before the trial court. 7. Learned Senior Counsel argued that in the instant case the prosecution witnesses developed their story and there are material contradictions between the statements recorded by the police under Section 161 Cr.P.C. and the statement recorded before the trial court. The learned trial court further committed a serious illegality in convicting the accused appellants for offence under Sections 302, 304-B and 498-A IPC. It is submitted that in the instant case prosecution has failed to produce any evidence showing that deceased Nisha was subjected to cruelty in relation to demand of dowry soon before death and therefore, the offence under Section 304-B cannot be held proved. Allegation of the prosecution witnesses that in the month of January 2010, deceased was subjected to cruelty in relation to demand of dowry cannot be accepted because it has been admitted by the prosecution witnesses that no such report was lodged in this regard. Thus, the learned trial court committed a gross illegality in convicting the accused appellants for offence under Section 304-B IPC. 8. It is argued that the learned trial court further erred in law in framing charges against the accused-appellants for offence under Sections 302 and 304-B IPC. Both the charges cannot be framed simultaneously. Once both the charges were framed, the accused appellants were deprived of taking defence. 8. It is argued that the learned trial court further erred in law in framing charges against the accused-appellants for offence under Sections 302 and 304-B IPC. Both the charges cannot be framed simultaneously. Once both the charges were framed, the accused appellants were deprived of taking defence. It is settled law that both the charges for offence under Sections 302 and 304- B cannot be framed together, though they can be framed alternatively. The learned trial court committed a further illegality in not taking into consideration that the prosecution failed to prove the site plan, recoveries etc. The learned trial court only on the basis that it was an unnatural death within 7 years from the marriage, made it a case related with the cruelty in relation to demand of dowry, convicted and sentenced the accused appellants. It is submitted that prosecution was under obligation to prove that deceased Nisha was subjected to cruelty in relation to demand of dowry soon before death. No such evidence has been produced by the prosecution. So far as, alleged statement of deceased Nisha is concerned, the same cannot be held reliable because it has been recorded by Chandra Pal Singh (P.W.1) in a very doubtful and hurried manner. More particularly, when he was having sufficient time to call for a Judicial Magistrate or Executive Officer or Higher Authorities, but he did not take any step in this regard, despite the request of Dr. Shri Ram Sain (P.W.2). 9. Learned Senior Counsel in the alternative submitted that focus of the prosecution evidence is mainly against the husband of the deceased Dev Prakash and accused-appellants Radhey Shyam, father-in-law and Smt. Hardevi, mother-in-law have been convicted and sentenced only because they happen to be his parents. Even if it is accepted that the accused Dev Prakash had been having dispute with his wife earlier and subsequently she died, it was at the maximum a case of suicide and not murder or dowry death. Allegations made by the deceased in the parcha bayan (Exhibit P-1) clearly indicate that the deceased only with a view to wreaking vengeance had chosen the entire family and named old aged parents of her husband Dev Prakash, otherwise main allegation even in her statement of pouring kerosene and litting fire has been made against accused-appellant Dev Prakash. Allegations made by the deceased in the parcha bayan (Exhibit P-1) clearly indicate that the deceased only with a view to wreaking vengeance had chosen the entire family and named old aged parents of her husband Dev Prakash, otherwise main allegation even in her statement of pouring kerosene and litting fire has been made against accused-appellant Dev Prakash. Learned Senior Counsel in support of his arguments relied upon the judgments of the Supreme Court in Hari Om Vs. State of Haryana & Another (2014) 10 SCC 577 and Atbir Vs. Government of NCT of Delhi, (2010) 9 SCC 1 . 10. Mr. M.S. Raghav, learned Public Prosecutor opposed the appeal and argued that there is sufficient and cogent evidence on record against all three accused-appellants for which they have rightly been convicted and sentenced by the trial court. While arguing so, learned Public Prosecutor referred to statements of prosecution witnesses which we shall deal at appropriate place hereinafter. 11. We have given our anxious consideration to rival submissions and carefully examined the material on record. 12. Although in the written report (Exhibit P-6), father of the deceased, Ramesh Chand (P.W.4) had levelled allegations against all three accused-appellants and also alleged that the accused earlier also in January, 2010, subjected the deceased to beating, which resulted into fracture of head and driven her out of the home but no evidence with regard to fracture of head either in the shape of any police report or any MLR or prescription of the treatment etc. has been produced to prove that the deceased was beaten and that too by all three accused-appellants. The informant had made allegation of pouring kerosene and litting fire against all three accused-appellants. Such case had been set up by the deceased herself in her parcha bayan (Exhibit P-1), which line was toed by her father Ramesh Chand (P.W.4) in the written report (Exhibit P-6). The evidence against the accused-appellants Radhey Shyam, father-in-law and Smt. Hardevi, mother-in-law therefore stands on quite sketchy ground. In fact, Ramesh Chand (P.W.4), informant in his statement before the trial court has stated that when the deceased was being taken in the jeep to Balaheda in a seriously burnt condition, he accompanied her and on the way she told him that her father-in-law, Radhey Shyam and mother-in-law Smt. Hardevi caught hold of her and Dev Prakash poured kerosene over her and lit the fire. It is actually toeing that line that similar parcha bayan was got recorded by the complainant from his daughter. In cross-examination, when it was put to him as to why he did not make such allegation in the written report (Exhibit P-6) that deceased Nisha when she was being taken to hospital in a jeep told him that her mother-in-law and father-in-law caught hold of her and her husband poured kerosene over her and lit fire, this witness stated that he mentioned this fact therein but why the police did not mention so in his police statement, he could not say. He in fact also mentioned in the written report that they tried to persuade the accused not to harass the deceased but why this part has not been mentioned in the report, he could not explain. In further cross-examination, this witness was confronted with that part of his police statement (Exhibit D-1) and written report (Exhibit P-6) wherein he stated that in March, 2010, when they persuaded the deceased to go back to her husband, she expressed apprehension that she might be murdered, he stated that this fact was told by him to police, but why the police has not mentioned so in written report (Exhibit P-6) and police statement (Exhibit D-1), he could not say. Furthermore, when he was confronted with that part of his examination-in-chief wherein he stated that when Bandikui police recorded statement of the deceased Nisha in the hospital, they were driven out of the room by the police, which fact was not mentioned in the written report (Exhibit P-6), he stated that he did mention this fact in the written report, but why the police did not indicate so therein he could not explain. 13. Manju Sharma (P.W.10), mother of the deceased, in examination in chief stated that all the accused were demanding a sum of Rs. 50,000/- and a motor cycle from her daughter and they used to beat her and finally burnt her. She further stated that the deceased was beaten about six months before the incident in the present case. At that time, she sustained fracture of skull and was driven out of the house. She stayed with them (parents) for about 1½ years and thereafter her husband and brother-in-law (‘jeth’) came and took her back on the premise that she would not be maltreated again. 14. At that time, she sustained fracture of skull and was driven out of the house. She stayed with them (parents) for about 1½ years and thereafter her husband and brother-in-law (‘jeth’) came and took her back on the premise that she would not be maltreated again. 14. Murari Lal (P.W.7), uncle of the deceased, in his cross-examination admitted that no complaint was made in the past against the accused-appellants that the deceased was used to be harassed or subjected to cruelty on demand of dowry. He mentioned the fact that the accused had earlier also broken the skull of the deceased Nisha, but he could not explain why this was not mentioned in his police statement (Exhibit D-2). They had learnt about the incident with the deceased at 6.00 A.M. and they went in a jeep to Balaheda. This fact was told by him to police, why it was not mentioned in Exhibit D-2, he could not explain. 15. Chandra Pal Singh (P.W.1), Assistant Sub Inspector of Police, who recorded dying declaration/parcha bayan of the deceased (Exhibit P-1) has stated that he received information about the incident at 8.30 A.M. on 19.06.2011 that a woman in burnt condition has been admitted in hospital and he reached hospital at 9.00 A.M. He recorded statement of the deceased Nisha, in seriously burnt condition, in the presence of Dr. S.R. Sain. In cross-examination, this witness stated that parents of the girl were also sitting by her side and they were talking to her and she was also conversing with them. He did not obtain separate certificate of fitness from doctor. He admitted that there were certain interpolations/over-writings in parcha bayan. 16. So far as deficiency on the part of the prosecution in not obtaining fitness certificate from the doctor about condition of the deceased whether or not, she was in a position to give statement is concerned, this stands cured by statement of Dr. Shri Ram Sain (P.W.2) who has stated that after the admission of the deceased in the hospital, he informed the police and soon thereafter Chandra Pal Singh (P.W.1) came to record statement of the deceased in his presence. He transcribed what was spoken by the deceased and statement made by the deceased in her name (Exhibit P-1) also contains her signatures. He transcribed what was spoken by the deceased and statement made by the deceased in her name (Exhibit P-1) also contains her signatures. Even this witness has admitted in the cross examination that 3-4 family members of the deceased from her parents side were with her and they were regularly talking to her. This witness further stated that he told Chandra Pal Singh (P.W.1) to inform senior police officials or C.O., who tried to contact them on mobile, but failed. He advised to call S.D.O. or any other executive officer. 17. Even though we may not be inclined to uphold the argument that dying declaration of the deceased should be completely ignored for the reason that fitness certificate was not obtained and it was tutored but at the same time, we are inclined to hold that the deceased had been having dispute with her husband and owing to that fact, she has died in such circumstances for which satisfactory explanation has not been given by the accused. In arriving on that finding, we find that so far as Radhey Shyam, father-in-law and Smt. Hardevi, mother-in-law are concerned, their names appear to have been mentioned by the deceased in her parcha bayan, as we have already discussed above only because on being prompted by her parents. We hold so because there was no reason why another sister of the deceased Chandrakala, who was married to Gajanand, elder brother of husband of the deceased, was not produced and further her husband, Gajanand, who happen to be another son of the accused-appellant Radhey Shyam and Smt. Hardevi has also not been produced. Considering the fact that sentence awarded to father-in-law and mother-in-law was suspended by this Court. In the facts of the case, therefore, we are inclined to extend benefit of doubt to mother-in-law and father-in-law, in so far as offence under Section 304-B IPC is concerned. However, their connection for offence under Section 498-A deserves to be maintained. But at the same time we are of the view that evidence in the present case falls short of proof of offence of murder having been committed by any of the accused-appellants, including even by husband, Dev Prakash. 18. However, their connection for offence under Section 498-A deserves to be maintained. But at the same time we are of the view that evidence in the present case falls short of proof of offence of murder having been committed by any of the accused-appellants, including even by husband, Dev Prakash. 18. Coming now to alternative argument advanced by learned Senior Counsel that it is not necessary that in each and every case, accused convicted for offence under Section 304-B IPC can be sentenced to life imprisonment thought minimum sentence thereafter is seven years. The Supreme Court in Hem Chand Vs. State of Haryana, (1994) 6 SCC 727 taking note of facts of that case reduced sentence of life imprisonment awarded to the accused therein to rigorous imprisonment of 10 years and observed in para 7 and 8 of the judgment as under: “7. ……. the accused-appellant was a police employee and instead of checking the crime, he himself indulged therein and precipitated in it and that bride-killing cases are on the increase and therefore a serious view has to be taken. As mentioned above, Section 304-B IPC only raises presumption and lays down that minimum sentence should be seven years but it may extend to imprisonment for life. Therefore awarding extreme punishment of imprisonment for life should be in rare cases and not in every case. 8. Hence, we are of the view that a sentence of 10 years’ RI would meet the ends of justice. We, accordingly while confirming the conviction of the appellant under Section 304-B IPC, reduce the sentence of imprisonment for life to 10 years’ RI.” 19. The Supreme Court in somewhat similar circumstances in State of Karnataka Vs. M.V. Manjuhathegowda, (2003) 2 SCC 188 , while convicting the accused therein under Section 304-B IPC awarded 10 years’ imprisonment. The Supreme Court in G.V. Siddaramesh Vs. State of Karnataka, (2010) 3 SCC 152 while dealing with somewhat similar situation observed in para 31 of the judgment as under: “31. In conclusion, we are satisfied that in the facts and circumstances of the case, the appellant was rightly convicted under Section 304-B IPC. However, his sentence of life imprisonment imposed by the courts below appears to us to be excessive. The appellant is a young man and has already undergone 6 years of imprisonment after being convicted by the Additional Sessions Judge and the High Court. However, his sentence of life imprisonment imposed by the courts below appears to us to be excessive. The appellant is a young man and has already undergone 6 years of imprisonment after being convicted by the Additional Sessions Judge and the High Court. We are of the view, in the facts and circumstances of the case, that a sentence of 10 years’ rigorous imprisonment would meet the ends of justice. We, accordingly while confirming the conviction of the appellant under Section 304-B IPC, reduce the sentence of imprisonment for life to 10 years’ rigorous imprisonment. The other conviction and sentence passed against the appellant are confirmed.” 20. All the aforementioned three judgments were followed by the Supreme Court in Hari Om (supra), in which case also sentence of life imprisonment awarded to accused-appellant therein was reduced to rigorous imprisonment of 10 years. Therefore, in the present case, in our view, ends of justice would meet if life imprisonment awarded to accused-appellant Ved Prakash under Section 304-B IPC is reduced to 10 years of rigorous imprisonment. 21. In the result, present appeal qua accused-appellants No. 2 and 3 namely Radhey Shyam and Smt. Hardevi is allowed and their conviction and sentence under Sections 302/34 and 304-B IPC is quashed and set aside. However their conviction under Section 498-A IPC is maintained, but they are sentenced to the period of imprisonment already undergone by them. Accused appellants No. 2 and 3 are already on bail. They need not surrender. Their bail bonds stand discharged. However, present appeal qua accused-appellant No. 1, Dev Prakash is partly allowed. His conviction and sentence under Section 302 IPC is set aside. Further, his conviction under Section 304-B IPC is maintained but he is sentenced to rigorous imprisonment of 10 years instead of life imprisonment. Further, his conviction and sentence under Section 498-A IPC is maintained. Both the sentences of the accused-appellant No. 1 Dev Prakash shall run concurrently. 22. His conviction and sentence under Section 302 IPC is set aside. Further, his conviction under Section 304-B IPC is maintained but he is sentenced to rigorous imprisonment of 10 years instead of life imprisonment. Further, his conviction and sentence under Section 498-A IPC is maintained. Both the sentences of the accused-appellant No. 1 Dev Prakash shall run concurrently. 22. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, appellants No. 2 and 3 namely Radhey Shyam and Smt. Hardevi are directed to forthwith furnish a personal bond in the sum of Rs.20,000/- each, and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months, undertaking that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellants aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.